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State v. Bragg

Court of Criminal Appeals of Tennessee, Knoxville

August 28, 2019

STATE OF TENNESSEE
v.
GARY LEE BRAGG

          Assigned on Briefs June 25, 2019

          Appeal from the Criminal Court for Knox County No. 108446 Bob McGee, Judge

         The Defendant, Gary Lee Bragg, was convicted by a Knox County Criminal Court jury of two counts of aggravated burglary, a Class C felony; possession of burglary tools, a Class A misdemeanor; and two counts of drug possession, a Class A misdemeanor. See T.C.A. §39-14-403 (2018); 39-14-701 (2018), 39-17-418 (2018). The trial court sentenced the Defendant as a Range III, persistent offender to twelve years for each aggravated burglary conviction and to eleven months, twenty-nine days for each misdemeanor conviction. The court ordered consecutive service of the aggravated burglary sentences, for an effective twenty-four-year sentence. On appeal, the Defendant contends that (1) the evidence is insufficient to support one of the aggravated burglary convictions and (2) the trial court erred by imposing consecutive sentencing. We affirm the judgments of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

          J. Liddell Kirk (on appeal) and R. Alexander Brown (at trial), Knoxville, Tennessee, for the appellant, Gary Lee Bragg.

          Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant Attorney General; Charme Allen, District Attorney General; and Ta Kisha Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle and J. Ross Dyer, JJ., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE

         This case relates to two November 2015 home burglaries. At the trial, a November 23, 2015 recording of a 9-1-1 call regarding a home burglary on Iredell Avenue was played for the jury. In the recording, a male caller reported that his home had been "robbed" while he had been at work. The caller reported "forced entry" through a side door and stated that his PlayStation 4, PlayStation 3, and a video game were missing, that he was unsure if anything else had been taken, and that a television had been moved.

         A November 25, 2015 recording of 9-1-1 call regarding an apartment burglary on Gallaher View Road was played for the jury. In the recording, a female caller reported that someone had "broken into" a neighboring apartment. She stated that the men "busted in the door" and that the men were still inside the apartment. She said that she had never seen the men previously, that a tenant had to have a key to lock the door from the outside, and that, as a result, she did not think the men were tenants. The dispatcher stated that another tenant at the apartment complex had called 9-1-1, as well. She provided directions to the apartment and said the men were leaving the apartment. She remained on the line until police officers arrived and placed the men in custody.

         Knoxville Police Officer Raiques Crump testified that he responded to the home on Iredell Avenue, that the homeowner stated the home had been burglarized, and that the homeowner showed him a side door that had been pried open. Officer Raiques said that the home had been "ransacked," that furniture had been moved, that clothes had been strewn about the home, and that someone had "torn up" the home. H e said the homeowner reported that two PlayStation consoles and a video game had been taken from the home. Officer Raiques said that he contacted the forensics department and that someone attempted to obtain fingerprints from inside the home. O n cross-examination, Officer Raiques stated that the homeowner only reported damage to the side door and did not mention a potential suspect.

         Knoxville Police Officer David Gerlach testified that he and Officer McNutt responded to the apartment on Gallaher View Road and that he saw two men leaving the apartment where a burglary had been reported. Officer Gerlach said that he and Officer McNutt commanded the men to lie on the ground and that the men were placed in handcuffs. Officer Gerlach identified the Defendant and codefendant Iran Lyons as the men leaving the apartment and said that, when he searched the Defendant, he found a set of keys with a key fob. Officer Gerlach said that he activated the key fob, that the headlights of a car in the parking lot flashed, and that he called for a police dog unit to "conduct a sniff" of the car. Officer Gerlach said that the dog "did a passive alert" for the presence of narcotics, that the vehicle was searched, and that marijuana and Opana pills were found inside the center console, along with the Defendant's identification. O fficer Gerlach said that four computers and a Kindle tablet were found on the back seat. Officer Gerlach said that the computers' serial numbers were entered into the NCIC database and that one of them had been reported stolen from the Iredell Avenue home.

         Officer Gerlach testified that the front door to the apartment had been broken and that a pry bar was found on a sofa cushion inside the apartment. He said that two PlayStation consoles had been disconnected and placed on the floor in the middle of the room, that the sofa had been overturned, that a loaded SKS assault rifle was behind the sofa, that the rifle contained thirty-seven live rounds, and that a .45-caliber Glock handgun was found "in the corner of the room." He said that the apartment had been ransacked and that a small bag of marijuana was found inside the apartment. He said the forensics department attempted to obtain fingerprints from inside the apartment. He identified various photographs showing the damage to the apartment door and the condition of the apartment when he arrived, and a video recording from his police car was played for the jury. He said that he did not find ammunition inside the apartment, other than the ammunition inside the loaded firearms.

         On cross-examination, Officer Gerlach testified that no fingerprints were found on the firearms and that he did not know which other items inside the apartment were dusted for fingerprints. He said that the pry bar was dusted for fingerprints but that he did not know whether any were ...


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